Select Committee on Finance and General Affairs debate -
Thursday, 9 Nov 1995

SECTION 54.

Mr. Dempsey

I move amendment No. 196a:

In page 74, between lines 31 and 32, to insert the following subsections:

"(4) Nothing in subsection (3) of this section shall prevent a planning authority or An Bord Pleanála from deciding to refuse permission for development where the planning authority or the Board, as the case may be, are of the opinion that the development for which permission is sought would be incompatible with and injurious to existing land uses in the immediate vicinity of the development because of the risk of environmental pollution from the activity to which that development relates.

(5) In assessing the compatibility of the proposed development with existing uses for the purposes of subsection (4) of this section, the planning authority or the Board, as the case may be, shall assume that the best available technology not entailing excessive cost will be employed in the activity to which the development relates.".

I know the Minister will tell me this is compatible with Environmental Protection Agency or An Bord Pleanála planning Acts. However, I have a major difficulty with the board and the local planning authority almost being excluded from considering the land use implications of a development when it overlaps with environmental pollution considerations. The net effect of section 54 in its current form would be that no account could be taken by anybody, of the effect in terms of land use, of activities licensable under this Act.

The planning authorities and An Bord Pleanála are better qualified to consider the land use implications of such proposals. If this aspect of the Bill is not dealt with either by way of my amendment or by an amendment put forward by the Minister, it will make a nonsense of planning law as well as this legislation. Perhaps my wording is not the best. It came from somebody in the legal profession and its spirit should be considered and accepted by the Minister. It is not acceptable that the Bill should remain as it is.

Mr. Sargent

My amendment is not complete as I intended to include terms to replace those I wish to delete. However, it is related and I echo Deputy Dempsey's comments. I will say more to my amendment but it will be a similar argument.

Mr. Howlin

I am aware of the clear case made by Deputy Dempsey. The purpose of section 54 is to co-ordinate the planning and development functions currently exercised by local authorities and An Bord Pleanála, in so far as they extend to the area of environmental protection, with those of the agency as the official licensing authority under Part V of the Bill. It is important that there is co-ordination but also separation so there is a clear understanding of the role of each body and that the environmental consideration is the responsibility of the agency. This degree of separation and co-ordination is necessary. We must avoid overlap, especially the possibility of conflict between requirements imposed by two separate legislative structures.

The section follows the precedent of the Environmental Protection Agency Act, as the Deputy correctly suspected I would mention. The most significant provisions in section 54 are that conditions of planning permission for a licensed waste activity shall cease to have effect in so far as they relate to environmental pollution, which is the responsibility of the expert agency established to look after that aspect. The granting of planning permission would not prejudice, affect or restrict the application of any provision of this Bill, which is important. The planning authority or An Bord Pleanála shall not, in the course of consideration of an application for permission to develop a waste facility, consider any matters relating to the risk of environmental pollution from a waste activity which is or would be subject to licensing under this Bill.

In essence, we are trying to create, in clear legal terms, the distinct functions of the various bodies. We are trying to group the functions of the Environmental Protection Agency as the expert body in environmental matters in a single unit and not have a position where An Bord Pleanála puts down conditions which might be at odds or at variance with conditions of a licence to be issued by the agency in due course. This is how it should be and I hope it meets the requirements of the Deputy.

Mr. Dempsey

I am concerned because an example has arisen in relation to the Environmental Protection Agency Act. There is an ongoing Bord Pleanála appeal in relation to the incinerator at Ringsend. People went to it with serious and obvious environmental concerns but were told by An Bord Pleanála they were dealt with under a different Environmental Protection Agency licensing system and that the board could not consider them. The Minister should try to explain the separation of powers to an ordinary person who is only concerned about the environmental effect of the development.

I would have no objection if the Minister was prepared to amend the Bill and the Environmental Protection Agency Act to ensure the licensing system is the same as the planning system, where there are two months to make an application, an appeals structure and both systems are compatible and comparable, or to allowing the agency to deal specifically with environmental matters and the planning agency to deal with planning. However, they are not compatible; they are different. The public does not have as great a say with regard to the Environmental Protection Agency Act and it will not have as good a say in terms of this Bill as it has in the planning system. It is wrong that the public is not allowed to put its case about environmental concerns with regard to proposals put forward.

I ask the Minister to reconsider this matter or include something in the Bill along the lines that a licence must be dealt with before a planning application is submitted. There cannot be a system which is semi secret and not as open to the public as the planning process. Decisions will be made in that context which will affect the lives of everybody concerned but the public has no real way of influencing those decisions or stating its case. It is a recipe for disaster and bringing all the systems into public disrepute. I heard comments from people who attended the Bord Pleanála hearing and they are incensed and outraged that they cannot express their views in relation to that matter.

I put down the amendment because I am genuinely concerned about the system we are trying to put in place. It must be more responsive and my amendment would ensure that it is so. It would allow people to have a genuine say. People said An Bord Pleanála hearing was a farce, that it was only going through the motions and would not listen to their concerns. I know the reality of the position, the legal prescription and the implications of what must be done. I understand the system, but I also understand people's perceptions. In this case, the perceptions count and I ask the Minister to give this matter further consideration.

Miss Quill

I support Deputy Dempsey's amendment. A Deputy from my party represents the Ringsend area and he discussed this matter with me. His perception is that it is an example of a new law, which is only beginning to take effect in practice, which seems in conflict with existing law. The Environmental Protection Agency law runs in tandem with planning law and is a good example of how a new law is beginning to take effect. There is a lesson to be learned if we examine the position, the experience of the case and the feedback from people who wanted to make submissions. There is a need to streamline the two laws and put in place a tighter procedure whereby one is more responsive and compatible with the other. In his amendment, Deputy Dempsey pointed out how this could be done. My point is that it should be done. It would be acceptable if the Minister finds a better or another way but there is a need to examine that area in the light of the Ringsend experience.

Mr. Sargent

I tried to resist the temptation to contribute because my motivation in the next amendment is identical to the sentiments expressed on this amendment. It is unfortunate that when I put down my amendment, I did not indicate I wished to substitute other terms. I am glad Deputy Quill has realised the error of her party's way with regard to the Environmental Protection Agency Act as it stands, which requires amendment because the provision is based on a fault in that Act. It effectively means a structure can be built but must remain redundant on the basis of environmental considerations.

This is not good practice from any point of view. Opposition is whipped up to an activity which is impossible to address through An Bord Pleanála. It will create bad blood, unnecessary anxiety and a great deal of wasted resources for the sake of a misapplication of the principle of separation. I agree there must be separation in terms of accountability from an administrative point of view. However, this should not be put before the interests of proper environmental legislation, as appears to be the case.

Deputy Dempsey and I are attempting to put the horse back in front of the cart. At present, the cart is built and the horse will be brought along later. The Minister may disagree, but I believe that is what is being done. I go some way toward supporting Deputy Dempsey's amendment. The planning authorities should be permitted to consider a planning application, under the Local Government Planning and Development Act, 1963, for a development which is likely to require a waste licence only after that licence has been granted. We should be able to grant the licence and then consider the building of the structure in question. That would put a little logic back into the aspiration to have proper environmental and planning law.

Mr. Howlin

I have sympathy for the general principle of the amendment but I do not agree with its methodology. The Deputy is suggesting that we roll back the thrust of the Environmental Protection Agency Bill itself and all legislation which followed from that. It is an established international principle that as environmental matters become more complex, environmental law becomes internationally more complex and expertise is required to make judgments on environmental matters. A decision was taken in 1992 to establish a body of environmental excellence to be the national guardian in that regard and hence the Environmental Protection Agency was established. It makes no sense, having established such a body, that the judgment on environmental matters becomes the responsibility of another agency.

Mr. Sargent

The amendment involves licensing.

Mr. Howlin

Please allow me to finish my point. I believe it is quite correct that a separation of functions exists for expert bodies. There is some validity in relation to the "cart before the horse" principle. Subsection (8) states that the Minister will have power to make regulations specifying the relative timing of an application for planning permission and a waste licence. Therefore, the Minister may decide that the licence might be required before the planning application is submitted. It strikes me as odd that any developer would proceed with a development before obtaining a licence to carry out the activity intended. There will be teething problems with any new system. However, the notion that because teething problems exist we should abandon the good, internationally established principle of having an expert body to make evaluations would be wrong.

I ask the Deputies to permit the section to exist and permit the separation of functions under its provisions. The degree and complexity of applications and the international environmental regimes will develop. It is important that a competent body exists to determine that separately. Perhaps there have been mistakes in the past in relation to timing but these can be addressed by way of regulations.

Mr. Dempsey

I am not convinced with the Minister's argument. I hope the Minister will return to this issue at Report Stage.

Amendment, by leave, withdrawn.

Section 54 agreed to.

Acting Chairman

We have not dealt with the various amendments and it has been ordered that we conclude at 1 p.m. With Members' permission we will deal with the remaining amendments without discussion.

Mr. Sargent

I am reluctant not to move amendment No. 196b because I do not know the Minister's view on it.

Acting Chairman

Unfortunately the time factor has defeated us.

Mr. Howlin

I am disposed to accept amendments Nos. e205 and 206e in principle, before the end of the discussion, on the basis that the Deputies responsible withdraw them. I will return with differently crafted amendments on Report Stage to incorporate the principles involved.